Franklin v. Belt , 130 Ga. 37 ( 1908 )

Lumpkin, J.

(After stating the foregoing facts.)

A will was propounded for probate. A caveat was interposed. On demurrer the- grounds of the caveat were stricken, and after the introduction of evidence a verdict and judgment were had admitting the will to probate. The caveatrix (the minor child of the testatrix) excepted.

1. The reasonableness or unreasonableness of the disposition of a testator’s estate has strong evidential value, where the issue is as to his testamentary capacity, and where the extent of the mental weakness is in doubt. Civil Code, §3267. In connection with other evidence it may also be consideied, where the issue is one of fraud, or of undue influence. It may be alleged along with other facts in setting ont fraud or undue influence and the-result thereof. A testator may, by will, make any disposition of his property not inconsistent with the laws or contrary to the policy of the State. If the will is freely and voluntarily made by a person who has testamentary capacity, á jury can not set it aside merely because they may think it unjust or unreasonable. Slaughter v. Heath, 127 Ga. 755 (57 S. E. 69). There is nothing in this will which is contrary to law or to the policy of this State, so as to render it void as illegal. A testator “may bequeath his entire estate to strangers, to the exclusion of his wife and children; but in such case the will should be closely scrutinized, and, upon the slightest evidence of aberration of intellect, or collusion or fraud, or any undue influence or unfair dealing, probate should be refused.” Civil Code, §3258. Considered as a separate and independent ground of caveat, the first ground was properly stricken on demurrer.

2. “The very nature of a will requires that it should be freely and voluntarily executed; hence, anything which destroys this freedom of volition invalidates a will; such as fraudulent practices upon testator’s fears, affections, or sympathies, duress or any undue influence, whereby the will of another is substituted for the wishes of the testator.” Civil Code, §3260.. “A will procured by misrepresentations or fraud of any kind, to the injury of the heirs at law, is void.” §3261. It was alleged that the executor named in the will and the sole legatee thereunder falsely persuaded the testatrix that her husband was endeavoring to deprive her of the custody of her child, and was actually taking legal advice for the purpose of accomplishing that end; and that the will, was the result of such fraudulent practices upon her fears and affections. New stronger appeals could be made to a mother -than that alleged. If anything would rouse her to action, and tend to affect the will which she was about to make, surely this would. If the facts alleged in the second ground of the caveat be true, as they must be taken to be for the purposes of the demurrer, there was enough to submit the question raised to the jury.

3. The third ground practically repeats the allegations of the second, and asserts that the alleged will was the result of undue influence. Strictly speaking, there is a difference between fraud and undue influence as grounds of a caveat. Undue influence may, iñ a general way, be characterised as fraudulent; but not all fraud amounts to undue influence in the meaning of the law. In Potts v. House, 6 Ga. 325 (15), (50 Am. D. 329), it was said: “Influence in procuring a will to be made, to be undue, must amount to moral coercion; it must destroy the free agency of the testator and constrain him to do what is against his will, but what he is unable to refuse.” To constitute undue influence within the meaning of the law, there must be mental constraint, moral coercion, the substitution of external for internal' agency. Thompson v. Davitte, 59 Ga. 472, 476. There may be fraud by a trick or de^ ception, which may furnish a ground for caveat, but which does not amount to undue influence. Terry v. Buffington, 11 Ga. 338 (8), (56 Am. D. 423) ; Morris v. Stokes, 21 Ga. 552 ; Walker v. Hunter, 17 Ga. 413. In Bohler v. Hicks, 120 Ga. 800 (48 S. E. 306), either deception or force and coercion, destroying free agency, is treated as undue influence. The decision there made was right on the facts of the case; but mere deception which leads a testator voluntarily to disinherit an heir or make a certain will is not identical with undue influence, which amounts' to mental constraint and destroys free agency. This ground, in so far as it sets forth fraudulent practices upon the fears and affections of the testatrix, by holding before her the danger of the loss of possession of her child, and inducing her under that influence to make a will, sets forth a sufficient ground of caveat. It is substantially identical with that preceding it, save that it alleges that undue influence was exercised by means of the false appeal to the fears and affections of the testatrix.

4. “A will executed under a mistake of fact as to the existence or conduct of the heirs at law of the testator is inoperative, so far as such heir at law is concerned, but the testator shall be deemed to have died intestate as to him.” Civil Code, §3262. Practically the same facts referred to above were pleaded again; and it was alleged that, through a mistake as to the conduct and intentions of her husband in this regard, the testatrix executed the will. If this be so, it would invalidate the will pro tanto, if the caveat had been interposed by him; and if the caveatrix had'the same right to urge this ground of caveat as he had, the result would'be the same. No point was raised by the demurrer or urged in the briefs as to the allegation that the interest of thé husband of the deceased in her estate “is now owned bv this caveatrix/-’ or its sufficiency to establish subrogation of the caveatrix to the position of the husband, or any right which might have existed on his part to file a caveat; and we have raised no such question.

It was contended, inasmuch as there .was no allegation that the husband and wife were living separately, that neither could she be mistaken as to his intention in regard to the custody of the child, nor could she be defrauded on that subject; but that she could easily ascertain his intention by inquiry, and could not be controlled by fear or fraud in regard to his conduct. It would be a most happy condition if fear and suspicion never entered the matrimonial domicile, and if during the cohabitation such perfect con-, fidence existed that no third party could poison the mind of husband or wife against the other, or influence the conduct of either by fraudulently playing upon his or her fears or affections, to the detriment of the other. But this can not be laid down as a universal matrimonial rule. Nor are doubt and suspicion, when once aroused by fraudulent artifices, likely to be instantly allayed by inquiry of the person toward whom they are directed. At least there is no such certainty that they will be thus allayed as to authorize its announcement as a proposition of law, rendering the ground of caveat alleging such facts demurrable. In Young v. Mallory, 110 Ga. 10 (35 S. E. 278), the testator knew of the existence of the person claimed to be his next of kin, and had full time and opportunity, before executing his will, for ascertaining with certainty the truth or falsity of the claim of relationship. He made a will leaving nothing to such person. A caveat was interposed to its propounding, on the ground that it was executed under a mistake of fact as to the existence of the heir. It was held, under the evidence, that he knew of the existence of the person claiming to be of kin to him, and of such claim, and that the case did not fall within the provision of the law on the subject of a mistake as to the existence of the heir. In regard to mistakes of fact touching the conduct of an heir, see the discussion on pages 13 and 14 of that authority.

Judgment reversed.

All the Justices concur, except Evans, P. J., disqualified.